Noosa Cooloola Pools Pty Ltd v Goodhanna Pty Ltd t/as Heat Pump Systems
[2013] QCATA 253
•24 September 2013
| CITATION: | Noosa Cooloola Pools Pty Ltd v Goodhanna Pty Ltd t/as Heat Pump Systems [2013] QCATA 253 |
| PARTIES: | Noosa Cooloola Pools Pty Ltd (Appellant) |
| v | |
| Goodhanna Pty Ltd t/as Heat Pump Systems (Respondent) |
| APPLICATION NUMBER: | APL205 -13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe OAM, Senior Member |
| DELIVERED ON: | 24 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal refused |
| CATCHWORDS: | MINOR CIVIL DISPUTE – where subcontractor’s invoice for solar matting not paid – whether building work – whether installer licensed – whether grounds for leave to appeal Queensland Building Services Authority Act 1991 (Qld) s 42, Schedule 2 Queensland Building Services Authority Regulation 2003 (Qld) s 5 Dearman v Dearman (1908) 7 CLR 549; Chambers v Jobling (1986) 7 NSWLR 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Noosa Cooloola Pools Pty Ltd engaged Goodhanna Pty Ltd t/as Heat Pump Systems to supply and install 24 m2 of black solar matting. The matting was designed to heat a pool that Noosa was installing for a client. Goodhanna completed the job and sent Noosa an invoice for $2,650. The pool owner was happy with the job. The work complied with industry standards. Noosa refused to pay Goodhanna because, it says, Goodhanna was not licensed to do the work. Goodhanna filed a claim in the minor civil disputes jurisdiction of the tribunal. An Adjudicator ordered that Noosa pay Goodhanna $2,770.
Noosa wants to appeal that decision. It says the learned Adjudicator erred in deciding that Goodhanna did not need to be licensed. It says that the licenses Goodhanna produced to the tribunal are not valid or appropriate. It says that, if the tribunal must deal with matters in a fair and just way, it is not fair that Goodhanna, which is unlicensed, is taking work away from licensed contractors.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice caused by some error?[3] Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at 2.
[3] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[4]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.
Section 42(3) of the Queensland Building Services Authority Act 1991 (Qld) states that a person who carries out building work without a licence is not entitled to be paid for that work. “Building work” is defined in Schedule 2 of the Act. It is arguable, although not certain, that the supply and installation of solar matting might fall within the definition of “the provision of …heating… in connection with a building”.[5]
[5] Queensland Building Services Authority Act 1991 (Qld) Schedule 2, paragraph (c).
However, as the learned Adjudicator identified, the definition of “building work” in Schedule 2 “does not include work of a kind excluded by regulation.” Section 5 of the Queensland Building Services Authority Regulation 2003 (Qld) states that work of a value less than $3,300 is not “building work” within the definition of the Act except in some limited circumstances, none of which apply here.
Goodhanna’s work was of a value less than $3,300. The learned Adjudicator found, correctly, that Goodhanna did not have to be licensed. Noosa’s arguments about who had a licence, when that person or entity held a licence and whether it was the correct licence are, therefore, irrelevant to the learned Adjudicator’s decision.
The tribunal’s obligation to deal with matters in a way that is fair and just relates to the parties before it, not the industry within which Noosa and Goodhanna operate. It also relates to the process adopted by the tribunal to reach its decision. As has already been observed[6], the obligation to deal with matters fairly does not mean that the tribunal can ignore the law.
[6]Kellogg v Board of Trustees The Ipswich Girls’ Grammar School [2011] QCATA 210.
There is no question of general importance that should be determined by the appeals tribunal. There is no reasonably arguable case that the learned Adjudicator was in error. There is no reasonable prospect of substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
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