Nadalini v RJW Developments Pty Ltd
[2013] QCATA 23
•7 February 2013
| CITATION: | Nadalini v RJW Developments Pty Ltd [2013] QCATA 023 |
| PARTIES: | Daniel Nadalini (Applicant/Appellant) |
| v | |
| RJW Developments Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL091-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 7 February 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal is granted. 2. The decision is set aside. 3. Daniel Nadalini pay to RJW Developments Pty Ltd the sum of $282.00 within 14 days. |
| CATCHWORDS : | Minor Civil Dispute – where contract for the importation of a boat - where claims and counter-claims for monies owing – where an assessment of competing claims was made on the evidence presented before, during and after the hearing – where procedural fairness given – where decision a matter of fact on the evidence – where sufficient reasons given in calculation of monies owing for Appeal Tribunal to substitute its own decision Queensland Civil and Administrative Tribunal Act2009, ss 32, 137, 138, 142(3) and 146 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 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
Senior Member Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
Daniel Nadalini and RJW Developments entered into an agreement for the purchase of a motor vessel to be shipped from the USA. The purchase process involved also purchasing a trailer to transport the boat to Australia.
A dispute arose between the parties about payment under the original agreement and collateral agreements and Daniel Nadalini brought an action in QCAT’s minor civil jurisdiction heard at the Southport Magistrates Court on 11 January 2012 for monies he alleged were owing from the transaction. RJW Developments counterclaimed.
After a very long hearing - some two and a quarter hours, the learned Adjudicator reserved her decision in a very complicated factual matter.
The decision was handed down on 28 February 2012 and Mr Nadalini was ordered to pay RJW Developments $8,515.23. His own application was dismissed.
Mr Nadalini appeals this decision.
Under the QCAT Act, an appeal in the minor civil dispute jurisdiction can only be brought with the Tribunal’s leave or permission.[1] The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[1] QCAT Act, s 142.
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In summary Mr Nadalini‘s appeal and submissions specify the following main grounds for its application:
a) the learned Adjudicator did not exercise natural justice in that she did not take into account the ownership of the trailer by Mr Nadalini and the resultant proceeds of sale of the trailer;
b) the learned Adjudicator failed to find that the additional costs were as a result of negligence by RJW Developments and should not be born by Mr Nadalini;
c) the learned Adjudicator allowed the costs of the title search to be included in RJW Developments’ claim but there was no evidence to show these costs were paid by RJW Developments.
Natural Justice and Fresh Evidence
Mr Nadalini’s first ground of appeal mixes concepts. He alleges a lack of natural justice because a finding of fact was made with which he disagrees.
A reading of the transcript of this hearing which concluded after 133 minutes does not support Mr Nadalini’s contention that the proceeding lack natural justice. The learned Adjudicator gave both parties time to explain their case and to provide further documents, striking a very appropriate balance between the parties in a very complicated factual matter.
As I have previously commented,[6] the minor civil jurisdiction within QCAT is an extremely busy jurisdiction. Decision makers must deal with the evidence presented by the parties fairly while still effectively using the hearing time available to each matter to reach a decision. This means dealing with evidence that is presented by parties on the day where ever possible. As long as adequate time is given to the parties to comment on the material or to ask questions that arise from it, the responsibilities of natural justice and procedural fairness are fulfilled in the hearing process.
[6]See Kevik Pty Ltd v Fielding and Whyte as Receivers and Managers of Arash Gol Mohammadi [2012] QCATA 215.
The transcript shows that these opportunities were afforded to Mr Nadalini. Both sides added documents and submissions to their filed material at the hearing. Mr Nadalini’s accusation that the learned Adjudicator caused him undue prejudice by allowing the counterclaim amount to be changed during the hearing is simply not borne out by the transcript.
Mr Nadalini also seeks to have this Appeals Tribunal consider further evidence supplied by him and attached to his appeal submissions.
However at the end of the hearing, by consent of the parties, the learned Adjudicator made directions allowing first RJW Developments and then Mr Nadalini 14 days each to file all invoices, receipts and any statements that relate to the matter and any issues that had arisen during the hearing.
The Appeals Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined.[7] Ordinarily, an applicant for leave to adduce such evidence must satisfy each of the following tests:
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); and
c) That the evidence is credible though it need not be incontrovertible.[8]
[7] ss 137 and 138 QCAT Act
[8] 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. In this matter, both parties have effectively had this opportunity by the directions made by the learned Adjudicator at the conclusion of the hearing and before she made her decision. They had heard the matter, they knew the issues, they should have known the evidentiary gaps in their material, they were given an opportunity (14 days each) to plug those gaps where documents existed.
Mr Nadalini has given no explanation as to why these documents were not made available to the learned Adjudicator either before, during or even after the hearing. In my view the fresh evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Adjudicator.
This Appeal Tribunal has expressed the view[9] that:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
[9]Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13]
Mr Nadalini’s appeal on his first ground of lack of natural justice must fail.
Findings of Fact
As I have commented above, reading of the transcript shows while the hearing was lengthy with extra documentation produced before, during and after the hearing, this was a decision based on the learned Adjudicator’s findings of fact.
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.[10]
[10]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
First, the absence of a finding of fact
Mr Nadalini seeks leave to appeal under his first ground because a finding of fact was not made on the evidence before the learned Adjudicator. Mr Nadalini wants the issues of the payment and ownership of the trailer to be part of the decision of the learned Adjudicator.
The application for leave to appeal must show a reasonably arguable case of error in the primary decision. Mr Nadalini does not point to such an error only to errors he perceives in the documents of RJW Developments. He seems to indicate that this omitted finding is important for ‘clarification on dealings to date’.
The reasons make it clear that the fact as to who actually paid for the trailer (or not) was a fact the learned Adjudicator did not consider she had to determine[11] and that the only relevant matters of fact were the cost of purchase, the amount it sold for and the profit made. Mr Nadalini accepted that the trailer was sold in Australia for $11,700.00 and that RJW Developments was entitled to half of the profit made on the sale.[12] RJW Developments also accepted this to be the case as set out in the acknowledgement of debt dated 5 January 2011.[13] It follows for the purpose of calculating what was payable to whom, Mr Nadalini was entitled to a refund of the purchase cost of the trailer plus half of the profit, which he says was $8,427.50.[14]
[11] Reasons paragraph 44.
[12] Transcript page 7.
[13] Letter attached to the application in the minor civil dispute.
[14] Ibid.
For the purposes of the appeal the findings sought are either implicit in the reasons or irrelevant because the facts were not contested.
Second, findings of fact made
Mr Nadalini’s other two grounds of appeal raise complaints about the findings of fact that were made by the learned Adjudicator. But simply disagreeing with the findings is not sufficient. The application for leave to appeal must show a reasonably arguable case of error in the primary decision. Mr Nadalini does not point to such an error. The error he identifies is that the findings and therefore the decision were adverse to him.
Mr Nadalini argues that findings of fact should have been made that show negligence on behalf of the broker, Mr Woodleigh, such negligence causing delay and storage costs. Mr Nadalini also objects to additional costs claimed by RJW Developments after the reply was filed.
But as I have indicated above, both parties were given ample opportunity to provide evidence – even after the hearing – and I am satisfied that the decision of the learned Adjudicator was open to her on the evidence before her.
Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[15]
[15] See Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
Consideration by the Appeals Tribunal of the sufficiency of the reasons
The reasons of the learned Adjudicator canvas in detail the issues that were before her. She carefully made findings about what monies were paid by Mr Nadalini and the costs incurred by RJW Development. Those findings were, on the evidence, open to her. However when considering the calculations in paragraph [66] there appears to be an inconsistency with the findings that a total of $53,346.35 was paid by Mr Nadalini[16] and then the statement that he had paid $43,346.35. Although not specifically referred to it seems that the difference in the figures relates to the $10,000.00 deposit on the jet skis already paid back by RJW Developments. In this particular paragraph, the learned Adjudicator goes on to summarise her findings of monies payable by Mr Nadalini to RJW Developments.
[16] Reasons [49]
By reference to the acknowledgement of debt and an acceptance that Mr Nadalini paid for the trailer, it seems on the calculations set out in paragraph [66] that no credit has been given to Mr Nadalini for the refund of the purchase cost and half of the profit. The learned Adjudicator did say that the letter of 5 January 2011 was not proof of indebtness because of Mr Woodleigh’s explanation that it was written before he did a full reconciliation. It is not disputed that Mr Nadalini was entitled to a refund of the $10,000.00 for the jet skis and the cost of the trailer plus half the profit. Furthermore, Mr Woodleigh signed the letter and therefore adopted its contents. The best that could be said that the letter did not purport to be the final position between the parties.
Upon the findings of what was paid by Mr Nadalini and the cost incurred by RJW Developments, the difference payable by Mr Nadalini, as found by the learned Adjudicator was $9,709.00. From this must be credited the refund for the trailer and profit of $8,427.00. The result is $1,282.00 payable by Mr Nadalini. RJW Development is entitled to a further credit of $1,000.00 because the learned Adjudicator found that this was overpaid by RJW Development and there is no reason to interfere with that finding. The result is that Mr Nadalini owes RJW Developments $282.00.
There has been an error of fact in the calculation of the figures and therefore leave to appeal should be granted, and the decision will be set aside. There will be an order that the applicant Mr Nadalini pay to the respondent RJW Developments the sum of $282.00 within 14 days.
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